David B. Wilkins, faculty director of the Center on the Legal Profession, sat down with Scott L. Cummings, the Robert Henigson Professor of Legal Ethics at the UCLA School of Law, to talk about democratic backsliding in the United States and what the legal profession can do.
David B. Wilkins: Why study lawyers in democratic backsliding?
Scott L. Cummings: What we have learned from studying democratic backsliding and autocratization over the last 20 to 25 years is that this new wave of autocrats—like Victor Orbán in Hungary, for example—have figured out how to effectively consolidate power using law. They call it “rule by law,” not by force. The basic strategy in the “autocratic legal playbook” is to use ostensibly legal means to make legal changes that are designed to target key democratic institutions that are supposed to check executive power. This is the new playbook—it centers law. It relies on law in order to be effective. Because of that, lawyers are the key ingredient to this new autocratic legalism because you need lawyers to design, draft, and defend the laws that dismantle these democratic institutions. That’s why it’s not a coincidence that Victor Orbán was trained as a lawyer and the key parliamentarians that were involved in the initial constitutional revolution that broke down the rule of law institutions were trained at elite law schools in Hungary. It’s no coincidence that Project 2025 in the United States was drafted primarily by lawyers or that the vice president is an elite-trained lawyer. This is a project that depends on lawyers to be effective.
Wilkins: That leads me to ask about the method more. There’s a key distinction you make in your work between what you might call the slow road to backsliding and the fast track to backsliding. Could you say a little bit about the distinction between those two pathways and how lawyers play a role?
Cummings: I derive this framework of the slow road and fast track from political science on democratic backsliding. Both of these pathways highlight how lawyers play key roles authoring laws that move countries away from democratic stability. The fast-track idea is about identifying an emergency to invoke extraconstitutional authority on the part of the executive to suspend the normal constitutional framework in order to stay in power. The best recent example of this was the effort by Jair Bolsonaro in the 2022 Brazilian election to claim voter fraud as an emergency foundation for suspending the legitimate results of the election, which he lost, to stay in power.
In that example, Bolsonaro directed his government lawyers to draft a legal plan that said because there was voter fraud, the election was null and void and he had the extraconstitutional authority to continue on in power even though he lost. That was obviously lifted from the Trump 2020 playbook, which was a very similar kind of fast-track attack on democracy where this voter fraud myth was used in an attempt to suspend the normal process for electoral college certification. There again, the idea was to claim that there’s an emergency that requires extraconstitutional action—in that case, keeping someone in power who didn’t win the election. It’s important that lawyers were central to both of those fast-track attacks. Neither one of them ended up working. But we’ve seen in other places around the world, like Hungary, the use of emergency powers to justify these big grabs of authority by executives.
Lawyers draft laws and defend them in court, and over time you see rule-of-law institutions required to check executive power, like courts, weakening—and that creates the risk of dramatic change.
Scott L. Cummings, Professor of Legal Ethics, UCLA School of Law
The slow road involves more incremental legal changes over time that end up weakening these key democratic institutions designed to put checks on executive power. Some slow-road changes are not specifically designed to promote autocracy, but they end up contributing to that result. One of the most important examples is gerrymandering in the United States, where lawyers have been centrally involved in designing and defending in court these highly partisan voting districts that end up promoting extreme politics and polarization, which is an essential seedbed for democratic backsliding to occur. Lawyers don’t help gerrymander necessarily with the intent of installing a Trump in power, but it has the effect over time of polarizing politics in a way that allows someone like that to emerge.
On this slow road, lawyers also design specific legal changes that target key rule-of-law institutions, such as capturing the courts. There are now unfortunately a lot of examples of lawyer involvement in redrafting the rules of judicial selection to enable judicial capture by the executive. Lawyers are essential in making sure that these legal changes fit within the system of constitutional authority, because again, this idea of democratic backsliding rests on being able to claim legal legitimacy. Lawyers draft these laws and they defend them in court, and over time you see rule-of-law institutions required to check executive power, like courts, weakening—and that creates the risk of dramatic change.
Wilkins: This leads to this next idea you’ve written about—professional erosion—because it’s not just the erosion of institutions, it’s also something about the erosion of the legal profession itself and its own norms. What is that and how do you see it happening? What are some key signs or key events that you’ve seen in other countries?
Cummings: The idea of professional erosion is to say that lawyers and the legal profession do in fact play important roles in stabilizing and protecting democratic institutions. It’s safe to say that American lawyers have a pretty spotty record of actually doing that well. So we can’t be Pollyannaish in the way that we think about lawyers and democracy—lawyers have done a pretty poor job at many different points in our history.
But the ideal of lawyers ensuring democracy functions well is one that we’re constantly striving for. Lawyers do very specific things to advance that ideal. They provide access to the legal system for people who require lawyers to be able to have their day in court. And they’re supposed to be independent from state power. We see this independence both in lawyers representing interests against government, making sure that government follows the rule of law, and in having lawyers within government legal positions, like public prosecutors, making decisions based on legal merits and not based on political considerations.
Professional erosion highlights structural forces that weaken lawyers’ shared professional commitment to independence and rule of law. Increasing inequality within the profession can fuel resentment and make lawyers identify more closely with local communities and political networks, reinforcing professional distance and fostering an us-versus-them mentality. For example, lawyers in small-town Ohio, where I grew up, who struggle to make ends meet by representing individual clients, have little or no professional connection with lawyers in elite firms in Los Angeles, where I now live, who become very wealthy representing the world’s largest corporations. This has always been true, of course, but as the extremes become more extreme, and lawyers lose connection to shared values, it undermines our collective commitment to ensuring that the system is fair for everyone.
The ideal of lawyers ensuring democracy functions well is one that we’re constantly striving for.
Scott L. Cummings
Polarization also contributes to professional erosion by radicalizing lawyers whose work is close to politics, specifically, lawyers in social movements and in government positions. When polarization increases, pushing political movements and parties further to the extremes, lawyers are forced to make a choice of resisting—and possibly losing career opportunities—or going all-in.
In 2020 we saw lawyers in government positions standing up to the extremes, pushing back against the attack on the election, standing up to Trump and saving the country at that moment from the unprecedented attempt to overturn the election. Now, in this moment, the extreme elements of the conservative movements have taken over the center of power. Lawyers in the Trump 2.0 administration have been carefully screened for absolute loyalty to Trump’s radical agenda. They will not stand up for the rule of law. And that’s a dangerous position for us all to be in.
Wilkins: What stands out to you in this current moment? What are the historical parallels or analogs that ought to be warning signs for us as we think about how lawyers at this moment are contributing to what is the erosion of these democratic and professional norms?
Cummings: There are historical continuities and discontinuities that are important to keep in mind. There are lots of historical examples of lawyers taking action that have been fundamentally anti-democratic in nature—everything from designing and enforcing the slave codes to designing and enforcing Jim Crow laws to more recent examples of bad conduct by lawyers in Watergate or in writing the Torture Memos. All of these are obvious instances in which lawyers took legal and illegal actions that were fundamentally in tension with the rule of law.
In my mind, what distinguishes the current moment from all of those prior examples is that as bad as all of them were individually and collectively, I think it’s fair to say that none of them were directed toward dismantling the independent institutions of democratic authority that are designed to cabin executive power in a systematic way. What we’re seeing now is the systematic demolition of checks on executive power that is deliberately designed to move us into authoritarianism. This is why what lawyers are doing now is unprecedented.
It is therefore far more dangerous. The way I think about where we are right now is to go back to 2020 as the catalytic event that galvanized a radical element of the conservative legal movement and provided a road map for how to use law in connection with a media strategy to sow democratic distrust and to set the stage for attacks on democratic institutions. [The year] 2020 planted the idea that lawyers could use the legal system to put out false claims of election fraud as a basis for making radical legal arguments that fundamentally subverted long-standing American democratic institutions.
In that case, the attempt to subvert the election failed—but barely. The important point is that, out of that failure, came the template for what we’re seeing now. That failure showed that the legal system could in fact be mobilized to attack a central democratic tenet: free and fair elections. That failure showed that lots of people could be convinced, based on specious legal claims, that there was something wrong and that radical change needed to happen. That playbook has been converted from this rear guard and chaotic attack in 2020 to an affirmative strategy of governance designed to undermine democracy that is now being advanced by the current Trump administration.
[President Trump] knows that disabling law firms from representing interests that are opposed to the administration effectively disables the adversarial system and the rule of law—which is how democracies die.
Scott L. Cummings
Out of 2020 we get Project 2025, which was a compendium of best practices from authoritarian regimes from around the world based on a very careful study led by lawyers—lots of whom were from the first Trump administration and who were committed to figuring out the vulnerabilities of American democracy that could be exploited. These lawyers studied Hungary very carefully and praised Hungary as the model for how to do autocracy (although they don’t call it that). The Trump lawyers made a very specific set of legal plans that are now being implemented every day through executive orders.
It is important to emphasize that what we’re seeing now is a direct translation of the 2020 playbook into Project 2025 and into the executive orders. The key orders are predicated on either outright false or deeply misleading claims that then justify transformation of American democratic law and practice. The recent order claiming to prevent “frivolous” litigation by law firms is the perfect illustration of this because of course we are all against frivolous litigation. But what the memo obfuscates deliberately is that the most significant frivolous litigation that we’ve seen in recent memory has come from Trump lawyers in the 2020 election. The order turns that reality upside down and uses it to go after law firms and the broader legal profession simply because Trump doesn’t want any legal opposition. He knows that disabling law firms from representing interests that are opposed to the administration effectively disables the adversarial system and the rule of law—which is how democracies die.
Wilkins: Given this, what, if anything, can lawyers and professional associations and organizations or institutions do when faced with this kind of playbook?
Cummings: Right now, the critical thing is for lawyers, the bar, law firms, and law schools to speak with one collective voice and stand up against what’s going on in Washington, D.C. This is not a moment for individual action. I don’t think individual action can have an effect. There has to be collective action, and it has to be a unified collective action across the profession and across political ideologies. All of us have spent our lives as lawyers committed to the idea that law is special and we need to preserve law as distinct from politics. Right now, we’re seeing that idea being demolished. Collective action by the profession with a strong voice condemning Trump’s fundamental attack on the rule of law is essential.
We all remember that there was significant collective mobilization in 2020. There were lawyers in airports defending against the Trump Muslim ban. Law firms across the board refused to provide representation for Trump and supported challenges to his policies. Other countries have seen lawyers go out in the streets—Pakistan, Israel, Poland—to defend the rule of law. Something like that needs to happen now. We need our own million lawyer march to demonstrate that there is a collective commitment to stopping this. The window for action is small, and it’s narrowing very quickly.
There are positive signs and actions we must build upon. There have been some statements made by law schools against the attack on universities. And there are organizations that are very courageous, like Lawyers Defending American Democracy, which is trying to organize lawyers and elite law firms and bars to take a stand. People are scared—and rightly so. This fear has debilitated collective action thus far. But I’m hoping that as the scope of these attacks, and their ultimate objective, become clear, and as we see that firms like Paul Weiss striking individual deals only emboldens Trump to widen the net, that lawyers will come together to take a stand.
We have to stand up for the rights of the most vulnerable people in our society right now because that is what defines a democracy—the idea that those with the least power still have equal protection of law. If we as lawyers cannot defend that idea with one voice, we risk losing it altogether.
Scott L. Cummings
Wilkins: It’s so important for someone as thoughtful and engaged as you to make that call to action. If you could make a recommendation to the American legal profession about what would be the most important thing it could do, if it could come together in some way to make some statement or action, given your knowledge around how these things have worked throughout other countries of the world and in history, what would that look like?
Cummings: I don’t know that I have the perfect answer to that big question. I know what it doesn’t look like. What it doesn’t look like is appeasement. It isn’t our country’s most prestigious and wealthy firms and universities striking deals to preserve their economic viability without putting up a fight. Individual institutional compromises, particularly at the elite level of the legal profession, where there are the most resources to resist actions that are clearly illegal and can be defended in court, is a recipe for autocratic consolidation.
Without putting up that fight, Big Law sends a message of despair to the rest of the profession. If the elite bar can’t stand up, then it doesn’t give us a good signal for everyone else to.
Leadership at the top has to make it clear that lawyers will put up a fight and that they won’t compromise the independence of the profession to perform their essential democratic functions—to represent people that need representation against government repression. We need lawyers in this perilous moment to represent immigrants who are our neighbors, family members, and friends, and who are being deported without any legal process at all—and without access to lawyers. This is authoritarianism. We have to stand up for the rights of the most vulnerable people in our society right now because that is what defines a democracy—the idea that those with the least power still have equal protection of law. If we as lawyers cannot defend that idea with one voice, we risk losing it altogether. And that is no longer America.
Wilkins: Well, it’s not the most optimistic tone to set at the end, but it’s maybe the most important because we have clearly seen throughout history what happens when people can be picked off, stopped, deported, expelled, exterminated, but if there is a collective action, then that’s the only hope there is. We can’t thank you enough for giving us this insight and perspective on these critical issues.
Scott L. Cummings is the Robert Henigson Professor of Legal Ethics at the UCLA School of Law. Read more from Professor Cummings in his piece, “Stopping Autocratic Legalism in America – Before It Is Too Late.”
David B. Wilkins is the Lester Kissel Professor of Law at Harvard Law School and the faculty director of the Harvard Law School Center on the Legal Profession.
